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Future proofing the case

Future proofing the case

Counsel need to rediscover the art of proof gathering, Victorian barrister Maryanne Loughnan SC writes. _x000D_

Counsel need to rediscover the art of proof gathering, Victorian barrister Maryanne Loughnan SC writes. 

In my last article for The New Lawyer (The Art of War - 3 Feb 2010), I raised the topic of information gathering for the purpose of early resolution of a dispute.

History, recent and ancient, teaches us that many invasions occur in the belief of either a mis-conceived threat or a rapacious over-confidence that a prize can be taken without a struggle. Commencing litigation is a form of invasion - the issues which are articulated in the claim permit the plaintiff to make invasive enquiry into the commercial life of the defendant on the premise that such inquiries are necessary for a just determination of these issues.

Such an encroachment stirs the defendant to begin its own invasion on the same premise. Teams of lawyers are set to the task of successfully claiming/defending a party's territory.

In an adversarial system of adjudication a court, when making findings of fact, is not given the task of finding the truth of the matter, but rather, holding for the most truthful account of the matter according to the manner in which a court understands events to happen ordinarily outside its walls.

Generally clients who are initiates to litigation are shocked to learn this. It is absolutely essential that any party engaged in litigation understands that the truth will not 'out' necessarily - and more accurately - as a happy accident.

Recognising the scope and depth of disruption that litigation can have on a party's life or business, it is troubling to observe the extent of poor and uncoordinated proof gathering that has been engaged in prior to the filing of a proceeding or a defence in matters which are not urgent in the sense that there is likely to be a loss of rights in the short-term.

Recently I asked a lawyer for a government agency what they considered was the primary cause of failed prosecutions of large, complex matters involving the attention of senior public servants, in-house lawyers, external lawyers and counsel. They responded that it was probably a lack of leadership – no one was expressly given ultimate responsibility for forensic strategy. This litigation model will empower each participant on the team to believe that they can input freely, regardless of their expertise and experience, and that all of their suggestions are right and proper, and therefore, should be adopted.

Wasteful tasks will be devised without reference to any plan of action. Conversely, if their judgment turns out to be poor they can shift responsibility to other members for their lack of foresight. This is a perfect model for creating conflict in, and paralysis of, the litigation team. In very short order there will be white-anting behind the scenes. So the first thing to do is pick a leader for your litigation team for the duration of the litigation.

The next thing to do is follow the leader. You should then take your client's stakeholders to your leader to ascertain the factual ambit of the dispute. It is then time to look under the hood - who are the client's key witnesses? What are the client's key documents?

Often the main documents are readily available and just as often the main witnesses are quarantined from this stage of the process as if their memories will improve with age. Invariably these individuals have knowledge of other key documents that will impact on the construction of the initial bundle. I have found that getting as full a proof as possible from witnesses at this early stage has incalculable benefits and yet is the most difficult thing to arrange. It is a crucial investment. If it is not done by a really good proofer - not just anyone on the team - your client is losing an immeasurable forensic advantage.

A thorough proofing of witnesses at the earliest possible opportunity was regarded by past generations of lawyers as mandatory defensive preparation for litigation.

Now there is far too much early focus on offensive strategies such as getting further and better particulars and discovery from the opposing party.

Alarmingly, as this is transpiring, very little effort is spent to ready the client for the very same tactics against it. I am also finding as corporates become more dissected into business units, with each unit having budgetary pressures, many find it very difficult to locate and retrieve information.

A business unit when approached for information often has a reflex similar to a slater bug - it will roll up and pretend it is an inanimate thing and of no earthly use to anyone. Sometimes the client requests its lawyers to engage directly with the business unit to convince it of the case for assistance.

In my next article I will address this phenomenon and the fine art of proofing a witness prior to the commencement of a proceeding or filing a defence.

Maryanne Loughnan SC is a member of the Victorian Bar practising commercial law. View her profile at:

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